Recently, the Mexican Supreme Court has once more sustained a discussion over how Section 133 of the Mexican Constitution must be interpreted. Section 133 determines the order of priorities in our legal system.
An interpretation issue derives from it because it states that the Constitution, the Federal Laws,and the International Treaties subscribed to it are to be considered as the supreme Law of the Nation. Therefrom, when a conflict arises between the provisions of the Federal Law and the provisions of the International Treaties, the question made to the Court was which regulation should prevail?
This debate is not new. It has a precedent since 1999. At that time, the Supreme Court decided that the International Treaties had a higher rank than the Federal Laws. Therefore, it was concluded in this precedent that in case a Federal Law contradicted a Section of an International Treaty, the second must prevail.
Notwithstanding the precedent mentioned before, the Supreme Court recently decided to review its position, whereby it concluded that International Treaties are in the same rank as the General Laws whose creation is mandatory in accordance with the Constitution. In other words, International Treaties would be in the same level as General Laws because the Constitution makes their creation necessary, i.e. some Health Regulations. Those rules must have priority over the ordinary Federal Law1. After this new criterion ordinary Federal Laws will have a lower rank than the International Treaties and the General Laws.
It is important to mention that considering that this decision was a result of a simple majority of votes (it was six against five votes), it does not constitute jurisprudence, but establishes an important criterion for all the Judges in our country as a precedent issued by the Supreme Court.
In other words, although the precedent was sustained partially, the difference the Court made could change today several criteria that were applied back then. Therefrom, the Mexican Judges should firstly take into consideration whether the Domestic law is actually regulating a Constitutional section. If that were the case, the Domestic law must be applied at the same level as the International Treaty. Otherwise, the International Treaty must prevail.
The main challenge of such interpretation might be that in most of the cases International Treaties do not provide a specific Article or hypothesis for the case, since they are made in order to be legislated in several countries. Furthermore, there are cases in which the Domestic Law establishes more rights or terms than an International Treaty. In this particular case what would happen to these additional rights? Would they be dismissed by the Courts? These and a lot more of questions would be resolved by applying the above criterion. Otherwise, the due process of law and the security of the citizens could be questionable.
Fortunately, in general terms the Mexican Industrial Property Law (MIPL) is harmonized with the International Treaties on this area to which Mexico is subscribed. Since approximately 2001 the Mexican Institute of Industrial Property (MIIP) has been applying the International Treaties in harmony with our Domestic legislation. In the case of an eventual discrepancy the authority has been attending to the criterion of the Supreme Court and has been applying the International Treaty over the MIPL.
Now then, it would be important to also take a look to our Health regulations, and to our Custom regulations among others, in view that they have been applied directly or indirectly to Intellectual Property owners, because when using this criterion the secondary law might be applicable with the same priority as an International Treaty. Hence, the scenario faced up today regarding the hierarchic order of our regulations could be modified after the Supreme Court publishes the current precedent.
1. The ordinary Federal Law is referring to all the regulation made through the legislative proceeding, but it is not concerning a Constitutional order.
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